A.C. v. Manitoba: Saving Pressing Questions For Later

The SCC’s recent decision in A.C. v. Manitoba, 2009 SCC 30, further makes clear that where children’s self-determination rights under the Charter are concerned, age limits to activate those rights are at least in some cases constitutionally valid. Unfortunately, that is about all it makes clear: A.C. is a decision that avoids confrontation with any true controversy. Given the religious issues involved, cases such as A.C. are potential hot-buttons; thus, the decision merits discussion of its vagueness and failure to make a true determination.

A.C. was a fourteen-year-old child when she was admitted to a hospital in 2006 with Crohn’s disease. She suffered internal bleeding, but completed a set of written instructions prior to her admission making clear that her wish, as a devout Jehovah’s Witness, was to not receive a blood transfusion. Hospital psychiatrists examined her and reported that A.C. was “alert and cooperative” and had no psychiatric illness. (Under Canadian common law, a patient has full right of refusal regarding any treatment – even one that would be a life-or-death decision.)

However, the hospital’s Director of Child and Family Services apprehended her as a child in need of protection under the Manitoba Child and Family Services Act, specifically s. 25(8-9), which read:

25(8). Subject to subsection (9), upon completion of a hearing, the court may authorize a medical examination or any medical or dental treatment that the court considers to be in the best interests of the child.

25(9). The court shall not make an order under subsection (8) with respect to a child who is 16 years of age or older without the child’s consent unless the court is satisfied that the child is unable

(a) to understand the information that is relevant to making a decision to consent or not consent to the medical examination or the medical or dental treatment; or

(b) to appreciate the reasonably foreseeable consequences of making a decision to consent or not consent to the medical examination or the medical or dental treatment.

A judge granted the order for treatment. A.C. and her parents appealed the order after her recovery, arguing that the sections of the Act violated the Charter of Rights and Freedoms, specifically s. 2(a) (because they contravened her right to practice her religion), s.7 (because the inability of children under the age of 16 to determine their capacity was an arbitrary restriction) and s.15(1) (because the Act discriminated against her based on age).

The Supreme Court upheld the appeal court’s decision to dismiss A.C.’s appeal. Justice Abella, writing for the majority, explained the Court’s reasoning: the “best interests of the child” standard, applied in an instance such as this one, creates a situation where the law “is neither arbitrary, discriminatory, nor violative of religious freedom.”

Abella J., explaining the history of the “best interest of the child” standard, states that it is not merely capacity to make a decision that demonstrates competence, but more importantly those elements that might affect a child’s independent judgement. Although Abella J. does not point to any particular factors in A.C.’s case that might have affected her judgement – this being irrelevant to the constitutionality of the law in question, not to mention being potentially offensive to impugn A.C.’s judgement without proof – as she enumerates various elements that might affect a child’s judgement, it is quite obvious that some parts of her explanation could easily be construed to apply to A.C.

Most notable of these is A.C.’s close relationship with her parents (who told the hospital psychiatrists that A.C. “treasures her relationship with God and does not want to jeopardize it, that she understands her disease and what is happening”). Abella specifically notes that the desire to please one’s parents can influence supposedly independent medical decisions.

Although she does not specifically apply this to A.C.’s situation, one can read between the lines: in Justice Abella’s reasons, one can glean a firm rebuke of the suggestion that a child raised by religious parents can exercise good judgement about medical care she has been informed is sinful. This is not surprising. Many people – even devout ones – can find the idea of refusing vital care hard to understand, but can at least tolerate one’s own medical choices.

However, that tolerance rapidly disappears in all but the most open-minded when faced with the concept of a parent allowing their child to refuse medical care – not least because most people’s self-preservation instinct makes it easier for them to believe that a person would need to be influenced into a suicidal decision rather than choose it themselves. In the case of a child potentially influenced by parents, this stops being an easily believable option and becomes (to most) a likely option.

It is this gut instinct that informs the decision. Justice Abella admits in her decision that A.C. successfully argued that a child under the age of 16 should be allowed to demonstrate sufficient maturity to have one’s medical decisions respected, but her reasoning as a whole is designed to avoid discussion of whether A.C. possessed that maturity: the question of A.C.’s capacity is deemed moot because it was never properly assessed by a court. (The initial psychiatric report did not directly address A.C.’s capacity to make the decision and it was never reviewed by a court at any level.) This seems like a judicial escape hatch. The Supreme Court had access to A.C.’s psychiatric report; there was no reason the SCC could not have undertaken the “searching review” that Abella J. noted was lacking.

The pressing question in A.C. is not specifically the constitutionality of the sections of the Child and Family Services Act; that question is a legal hobbyhorse for the real issue at stake in the case, which was “where do we draw the line when a child in a religious family wishes to essentially commit suicide by refusing treatment?” The SCC’s response is a list of determinative factors (at para. 96), which, the reader is informed, is not intended to be formulaic or determinative, but merely present a helpful set of guidelines. It is, in short, a lengthy variant on “use your own best judgement.”